Non-European Informal Methods of Dispute Settlement as Legal Mechanisms - Literature review Example

Comparative Law in a Global Development Context Comparative Law in a Global Development Context Comparing customary laws in Nigeria and Pakistan, one understands that the two nations have different perspectives pertaining to adultery, theft and land use. While cases of adultery are dealt with council of elders in Nigeria, men have been given the mandate to deal with such cases in Pakistan. Penalty for theft in Nigeria is payment plus the thief would be imprisoned while in Pakistan it is compensation only, the plaintiff is let free once they make the payment. Finally in Nigeria, both the government have ownership over the land with the government being superior while in Pakistan, the land owner has more power that the government. Different cultures have their own way in which they deal law. While one culture will condemn certain actions, another culture will accept it. Much debate has been going on whether to entirely adopt the European union system or the customary system or incorporate both of them and come up with a comprehensive system. This paper will focus on the motion that “Non-European informal methods of dispute settlement might resemble healing rituals than legal process, but they are just as powerful as legal mechanisms” as put forward by Weiner Menski. According to the movie, “Sisters in Law” that depict Cameroon settlement of Kumba town, reveals a formal legal system that cannot protect women from domestic violence and traditional rules and regulations (Anleu, 2005). The movie however shows that community can change if people are ready to stand for truth just like the two women who stood up for justice and sentenced those convicted thus bringing transformation to the community. One fundamental point to note from the law that was developed by the women is that it was flexible and could be adjusted to fit the surrounding circumstances. This is clearly shown when a girl is asked to propose the kind of punishment that she would want to be carried out to her husband and father. She simply says, “She does not want any case” and all she demand is custody for her child. The father and the husband the go unpunished. On the other hand, in “Inside a Sharia Court” Sa’adiyya Ibrahim, through swearing using Quran, succeeds in bringing his husband to justice for having failed to meet his Islamic responsibilities of taking good care of the family. This being exceptional case in the movie, other scenes within the movie clearly shows that women rarely get the opportunity to bring men to justice. This is to say that, religion can be one of the methods of conflict resolution though it may fail in protection other vulnerable subjects and only those who stand up for it will benefit from it. In the Central Africa Heritage Zamfara state in Nigeria people prefer religious methods as a way of solving conflicts over the state judicial systems. This is because, according to them, judicial systems are associated with corruption while religious are not. It is important to understand that Zamfara operates within a country whose legal stracture is extremely different. Take for example a religious law that gives people mandate to stone adulterers. If the same law is incorporated within the legal stracture, they the stoners will be convicted of murder. This is to say religion has a role to play is solving conflict in some African countries even though these countries are democratic and have a constitution. Dam (2006) recognises the importance of merging the two systems when she asserts that “I saw indigenous train in formidable laws and add this cultural background training to the western training making them unshakable and unstoppable.” Her argument is leads to the question of: will the initiative of transcending past European context increase one’s understanding of different aspects of the law? According to Fennell (2007), it is very important to move beyond Euro-centric and a state-centred kind of thinking, as far as the world of globalisation is concerned. According to Glenn (2007) studied comparative law suggested that civic law is highly reliant on political. This is because the two kinds of systems are developed to govern that same kind of people. This caution people from adopting civic from another nation and suggest that people should do a comparative law analysis of that nation’s law to find out if the nation has the same institution and that same political law. This is to say that one should not entirely denounce the laws of a particular country and adopt European laws under the mentality that European laws are more superior the non-European laws thus conforming to Menski (2007) thought that the West practise and “intellectual apartheid”. In order to have a good legal systems, different laws should mutually borrow from one another so as to come up with a comprehensive system of law. Problems set in when a certain legal system completely replaces another system. This point is solidified by Menski (2006) when he asserts that change from colonial regime to independence was accompanied with a lot of issues as far as state, religious and customary laws were concerned. His argument is based on the fact that adoption of those laws was a little hard since most of them were from Asian continents yet these Asians are struggling with how they handle their religion and ethnic minorities. Similarly, Ridley (1992) argue that political and civic laws of different countries ought to be embrace in such a way that it will benefit the people whom it is adapted for and that would be a great chance of finding laws that are compatible in such a manner. It is therefore fundamental to broadly understand a particular law before adopting it. Narrow knowledge of a particular laws is dangerous as it will not only lead to improper understanding of non-European society and way of life but it will also lead to improper application of the adopted European law to real life situations. According to him, African, Asian and other non-European legal systems are more inherent that the Europeans ones. Furthermore, Stiglitz and Charlton (2005) supports the ideas by asserting that variations of application that emanates from differences in use, scope and aims of different types of legal systems, is the major cause of all the contestation that looms around. Following such contestations, theories have emerged that the U.S. is practising “legal imperialism” following their constant demands they impose on nations and consultants to adopt procedures that have been modelled from American system. However, the movie “Bamako” has portrayed failure of such strategies as depicted by the failure of strategies in the Washington consensus. Fennell (2007) investigated seven different types of traditions: indigenous, Talmudic, civil, Islamic, common, Hindu and Asian laws respectively and concluded that irrespective of the differences that exists in all the above mentioned laws, they are completely fundamental and complementary in bringing transformation to people from diverse culture in an increasing world of globalisation. Therefore, a given country should strive to beater their indigenous legal system rather than looking forward to borrow and export legal laws from abroad. The following session will look at practical cases studies that will cement this argument. In some African nations, non-European healing rituals are used as conflict resolution techniques and are far more superior to European methods. According to Glenn (2007), some systems are a way of exertion of revenge. According to these systems, justice is attained when someone is able to make another person undergo the same suffering the victim underwent. According to him, this is simply transfer of desires to revenge from the individual to the state or official bodies. Consider case studies from the following nations: South Africa, South Sudan and Sierra Leone. In South Africa, the racial segregation of was one of the worse violation of human rights. It is important to understand that this was a European method of doing things. This system became a policy following the general elections of 1948. According to these new systems, South Africans were categorised into four racial groups. Fundamental services like, medical care, education and public services were segregated. Africans were given services that were inferior to those that were given to white. Revolution of apartheid led to grievous physical and psychological to women and children especially from the non-white population. The brutal system compelled Africans to accept the fact that they were and inferior races in their own continent and this remained to be a public policy. People like Che Guevara tried to advocate against in the international communities however it aggravated the issue more. Within six years after this call, non-white political representation as put an end and consequently non-white people were deprived of their citizenship identities. This movement led to imprisonment of Nelson Mandela after having been branded a terrorist and a communist. However, in 1990 the movement was overcome and by 1994, when Mandela was elected as the president of S.A. the movement had totally ended. The most important thing to note is that, rather than seeking justice and punishment for the white population, a process of telling the public the truth was adopted and it resulted to healing of the nation. This is greatly contrasted with the European methods that would have employed uses of imprisonment and other forms of punishment. The non-European method simply advocated for negotiations and peace. This clearly shows the superiority of African systems which has the capability to accommodate population from different diverse cultures and races. This clearly supports Anleu (2005) argument that non-European systems to resolve conflicts involve healing rituals that cares for human and minority rights. In South Sudan, in the 20th century, saw great marginalisation of the non-Muslim south leading to division and fierce civil war in the nation. This conflict was as a result of political, economic and social domination of the north by non-Muslim against the non-Arabs Sudanese in the south. According to Dam (2006), Sudan government recognises southern Sudan people as African and Negroid. Due to this marginalisation, the people of south Sudan find it had to develop and occupy the central and Arabized northern parts of the nation. As a result, they lacked the necessary education that would enable them develop economically and socially. History has it that in 2011, they got independence in spite the fact that they were marginalised under the existing constitutional law. This was possible due to their hybridity and mutability nature of their local law. It is important to understand that, future sustainability of South Sudan will rely on peaceful negotiations with the North Sudan despite that fact that the two were under constant conflict. Ridley (1992) realised that this would be possible because “ordinary law is not a group of rules and regulations but it is a process that has been contextually defined and that involve flexibility, agreements to reflect reasonable opinions under all circumstances.” This is to say that whenever a conflict occurs, people can only be brought together by peaceful negations and not through a series of predefined laws. In this case of Sudan, people realise the importance of customary laws in solving dispute rather than using the disciplinary measures as written in the constitutional laws. Finally, in the case of Sierra Leone, European methods of solving dispute failed. The country was a British colony which got independence in 1961 and a decade after it became a republic. However, due to corruption and inequality of citizens, Sierra Leone it collapsed in anarchy which led to civil war which took 10 years to end. However, it had eroded the nation’s socioeconomic status together with all the European legal systems that existed in the nation. After the war ended, that nation came up with customary laws to resolve the conflict. Ridley (1992) observes that, “ending of the civil war destroyed formal legal system and demanded customary laws which would be of great assistance to process of conflict resolution.” He acknowledges that the presence of courts to dispense customary laws has currently enabled rural areas get the justice they longed for. Despite of the criticism that the customary laws by the court deprive people their rights, Sierra Leoneans have seen a great improvement from the anachronistic laws drawn from England that molested women and treated them as minors. Though the anachronistic laws still exist in the law books of the Sierra Leone, they have been nullified since they did not lobby for equity. Stiglitz and Charlton (2005) argue that Sierra Leone law is cost-effective, flexible and renders justice to Sierra Leoneans. He continues to say that the law is meditative and fosters restorative decisions that are fundamental to the needs of citizens, especially the poor population as opposed to the England methods that were extensively adversarial These customary rules agree with Menski (2007) that “non-European methods are just like healing rituals, as far as conflict resolution is concerned, as opposed to the European procedures, yet they are equally powerful like the European methods.” As a result, Sierra Leone has adopted the use of customary laws is solving conflicts rather that depending on written constitution. As to conclusion, the initial aim of this paper was to prove that fact that “Non-European informal methods of dispute settlement might resemble healing rituals than legal process, but they are just as powerful as legal mechanisms” as put forward by Menski. As it has been discussed in the paper, several movies and documentaries were reviewed in order to support the motion. Through employment of comparative model analogy, the paper has been able to make the reader understand that, from time immemorial, the laws has been emphasising on flexibility and adaptability as far as circumstances are concerned. In the three case studies of African nations: South Africa, South Sudan and Sierra Leone, it was evident that the Europeans system of dealing with people resulted to racial discrimination and religious segregation. Though they tried planting this into Africa, they never succeeded. In addition to that, the European system also brought marginalisation and corruption which finally led to outbreaks of war. However, implementation of customary laws was a great relief for it enabled bridging the gap and bringing healing to people who had been under oppression for many years. Finally, the paper is not suggesting that constitutional laws to be laid aside and adopt the customary laws. It is simply suggesting adoption of a hybrid laws that consist of both laws. This is because mixing both the European and non-European cultures produces as system that is unstoppable and unshakable. References Anleu, S.L. (2005), Law and Social Change. London: Sage Publications. Dam, K., (2006). The Law-Growth Nexus: The Rule of Law And Economic Development. USA: Brookings Institution Press. Fennell, S. (2007) Law and Institutions in International Development. London: Routledge-Cavendish Publishing. Glenn, H. P. (2007) Legal Traditions of the World: Sustainable Diversity in Law. USA: Oxford University Press. Menski, W. F. (2007) ‘Beyond Europe’ in Örücü, E. and Nelken, D (ed.) Comparative Law: A Handbook. Oxford: Hart Publishing. Menski, W. F. (2006) Comparative Law in a Global Context: The Legal Systems of Asia & Africa, London: Cambridge University Press. Ridley, E. (1992) An African Answer: The Key To Global Productivity. USA: Africa World Press. Stiglitz, J.E & Charlton, A (2005) Fair Trade For All: How Trade Can Promote Development. Oxford: Oxford University Press. Read More